Amended proposal for a European Parliament and Council Regulation on the law applicable to non contractual obligations (“Rome II”) (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2006-02-21
Institutions: European Commission
Subjects: EU Member State, EU national, application of the law, area of freedom, security and justice, civil law, commercial law, judicial cooperation in criminal matters in the EU, jurisdiction, law of obligations, mutual recognition principle

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.02.2006 
COM(2006) 83 final 

2003/0168 (COD) 

Amended proposal for a  

EUROPEAN PARLIAMENT AND COUNCIL REGULATION 

ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS 
(“ROME II”) 

(presented by the Commission pursuant to Article 250 (2) of the EC Treaty) 

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EXPLANATORY MEMORANDUM 

1. 

BACKGROUND  

The  proposal1  was  adopted  by  the  Commission  on  22  July  2003  and  transmitted  to  the 
European Parliament and the Council on the same date.  

The  European  Economic  and  Social  Committee  adopted  its  Opinion  on  the  Commission 
proposal on 30 June and I July 2004.2 

The European Parliament adopted 54 amendments at first reading in plenary session on 6 July 
2005.3 

2. 

OBJECTIVE OF THE AMENDED PROPOSAL  

The amended proposal adapts the original proposal for a Regulation on the law applicable to 
non-contractual  obligations  in  the  light  of  certain  amendments  passed  by  Parliament  while 
reflecting proceedings in the Council. 

3. 

COMMISSION  OPINION  ON  THE  AMENDMENTS  ADOPTED  BY 
PARLIAMENT 

3.1 

Amendments accepted in their entirety by the Commission 

Amendments 2, 12, 17, 19, 22, 24, 35, 38, 39, 40, 44, 45, 48, 51, 52 and 53 can be accepted as 
presented  by  Parliament  since  they  make  improvements  relating  either  to  the  clarity  of  the 
instrument  or  to  questions  of  detail,  or  add  material  that  will  be  potentially  useful  in 
implementing the initial proposal. 

3.2 

Amendments accepted by the Commission as to substance, subject to redrafting 

Amendments 1, 5, 18, 20, 21, 23, 25, 28, 34, 36, 37, 46 and 49 can be accepted in principle, 
subject to redrafting. 

Amendment 1 refers to the Rome I Regulation. But until the Regulation has been adopted, it 
would be preferable to refer to the future Community instrument that will replace the Rome 
Convention of 1980. 

Amendment 5 brings non-contractual obligations based on strict liability and the capacity to 
incur  liability  in  tort/delict  within  the  scope  of  the  Regulation.  While  the  Commission  can 
accept  this  analysis,  it  prefers  to  combine  all  the  points  concerning  the  scope  of  the 
Regulation in a single recital – recital 5 – without repeating all the questions already covered 
expressly by Article 12 (scope of the applicable law). 

1 
2 
3 

COM (2003) 427 final – 2003/0168 (COD); not yet published in the OJ. 
OJ C 241, 28.9.2004, p. 1. 
A6-0211/2005. 

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Amendment 18 specifies that unjust enrichment and administration of others' affairs without 
a mandate are to be considered as breaches of non-contractual obligations for the purposes of 
the  Regulation.  The  Commission  agrees  with  this.  But  to  avoid  making  the  text  more 
cumbersome, it prefers to combine all the points concerning the scope of the Regulation in a 
single recital. Above all the Commission feels it is preferable to restate that there should be an 
autonomous and coherent interpretation of the legal concepts used in the Brussels I and Rome 
II  instruments  and  the  Rome  Convention  of  1980  –  or  the  Community  instrument  that  will 
replace it – by the Court of Justice rather than a long but inevitably incomplete list of details. 
This amendment also aims to exclude the liability of public administrations in respect of acts 
or omissions occurring in the performance of  their duties from the  scope  of the  Regulation. 
The  Commission  accepts  the  amendment  as  regards  the  substance  but  prefers  the  forms  of 
words commonly used in international conventions. 

Amendment 20 aims to exclude non-contractual obligations governed by specific provisions 
of  company  law  or  specific  provisions  applicable  to  other  bodies  corporate  such  as 
associations. The Commission accepts this amendment as regards the substance but proposes 
drafting it in simpler terms. 

Amendment  21  would  exclude  non-contractual  obligations  arising  from  a  trust.  The 
Commission accepts the principle of the amendment but prefers to adopt the wording of the 
Hague Convention of 1 July 1985. 

Amendment  23  would  exclude  liability  for  acts  of  public  authority,  including  liability  of 
publicly  appointed  office-holders.  The  Commission  can  accept  the  proposed  solution  as 
regards the substance but considers the amendment to be redundant in view of amendment 18.  

Amendment 25 would allow certain parties who are already in a contractual relationship to 
choose  the  law  applicable  to  their  non-contractual  obligation  before  the  loss  or  damage  is 
sustained. The Commission can accept the principle of an ex ante choice and agrees that the 
choice should be subject to strict conditions, in particular to protect the weaker party. But the 
conditions for the choice should be expressed in clear and simple terms. If the legal terms are 
not  precise  enough,  parties  might  feel  they  were  being  given  an  incentive  to  litigate,  which 
would  make  the  procedure  more  cumbersome  in  terms  of  duration  and  cost  and  thus  run 
counter to the objective pursued by the Regulation. The wording proposed by the Commission 
would  both  protect  consumers  and  employees  from  ill-thought-out  choices  and  exclude  the 
possibility of such choices being imposed in standard contracts. 

The Commission can accept the principle of amendments 28  and  34, which would change 
the  structure  and  title  of  the  sections  to  make  a  clearer  distinction  between  the  general  rule 
and special rules for certain categories of liability. To reflect proceedings in the Council and 
the differences between the Member States’ legal systems, the Commission  proposal  makes 
an additional distinction between the special rules applicable to certain categories of liability 
and the specific rules governing unjust enrichment and administration of others' affairs.  

Amendments  36  and  37  replace  the  single  rule  of  Article  9  of  the  initial  Commission 
proposal,  applicable  to  all  quasi-contracts,  by  two  specific  rules,  one  applying  to  unjust 
enrichment and the other to administration of others' affairs. The Commission can accept this 
additional distinction. In its amended proposal, however, it wishes to reflect certain technical 
improvements in the text emerging from Council proceedings. 

Amendment  46  seeks  to  clarify  the  rule  on  direct  actions  against  the  insurer  of  the  person 
liable without modifying it as to the substance. The Commission can accept the principle of 
redrafting  the  rule  to  make  it  easier  to  understand.  But  it  prefers  the  form  of  words  that 
emerged from the Council, which pursues the same objective.  

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Amendment 49 seeks to clarify the place where a natural person working from home has his 
habitual  residence.  The  Commission  can  accept  the  principle  of  this  clarification,  but  it 
prefers a form of words that is closer to what emerged from the Council, whereby the court 
would prefer the actual place where an occupation is exercised rather than an official address 
which might turn out to be purely fictitious. 

3.3 

Amendments accepted by the Commission in part  

Amendment  3  would  adapt  recital  7  of  the  initial  proposal  to  the  changes  made  by 
amendment 26 relating to the general rule in Article 3. Since the Commission can only accept 
part of amendment 26, it will have to reject the corresponding amendment to the recital. As 
regards the final sentence of the amendment, restating the need to respect the intentions of the 
parties, the idea is already covered by recital 8 in the Commission’s amended proposal. 

Amendment  14  relating  to  rules  of  safety  and  conduct  in  the  country  where  the  loss  or 
damage is sustained serves two purposes: first, to add the words “in so far as is appropriate” 
so as to emphasise even further that the application of these rules is in the discretion of the 
court, and second, to exclude this possibility in matters of defamation and unfair competition. 
The Commission can accept the proposed clarification for the first sentence of the recital. But 
Parliament’s report offers no justification for excluding the rule in matters of defamation and 
unfair competition. The Commission accordingly sees no reason for depriving the perpetrators 
of these two categories of liability of the protection which this rule gives them.  

Amendment  26  relating  to  the  general  rule  in  Article  3  of  the  initial  Commission  proposal 
can be accepted as regards the drafting improvements to paragraph 1, which confirms the rule 
proposed by the Commission. On the other hand, the Commission cannot accept the changes 
to paragraphs 2 and 3. Paragraph 2 brings in a specific rule concerning traffic accidents which 
would  subject  to  two  different  laws  the  non-contractual  obligation  and  the  amount  of 
damages. The Commission appreciates Parliament’s efforts to find a fair solution for so many 
people who are the victims of traffic accidents but this solution, which would diverge sharply 
from  the  law  in  force  in  the  Member  States,  cannot  be  adopted  without  prior  in-depth 
analysis. It is accordingly proposed that the question be considered in detail in the report on 
the application of the Regulation, provided for by amendment 54. As regards paragraph 3, the 
amendment would substantially alter the spirit of the instrument. While it is specified that the 
exception  clause  available  to  the  court  really  would  be  applied  “by  way  of  exception”,  the 
current  wording  runs  the  risk  of  sending  a  message  that  is  contrary  to  the  foreseeability 
objective pursued by the Regulation. The mere fact that the paragraph lists no less than five 
factors  that  can  be  taken  into  consideration  to  justify  activating  the  exception  clause  means 
that  the  parties  and  the  courts  will  routinely  check  the  justification  for  the  solution  that  the 
general rule would have generated even where it is at first sight satisfactory. The Commission 
therefore cannot accept this part of amendment 26 and maintains its initial approach, which 
the  Council  also  appears  to  have  endorsed.  But  the  Commission  does  acknowledge  the 
significance of some of the factors listed in paragraph 3, in particular as regards the parties’ 
shared  habitual  residence,  a  pre-existing  de  facto  or  de  jure  relationship  or  the  legitimate 
expectations  of  the  parties.  As  the  first  two  of  these  are  already  mentioned  expressly  in 
paragraphs 2 and 3 of the initial proposal, Article 5(3) of the amended proposal now contains 
an express reference to the legitimate expectations of the parties. 

Amendment  50,  which  concerns  the  mechanism  for  the  public  policy  (ordre  public) 
exception,  first  inserts  a  new  paragraph  1a)  to  spell  out  the  concept  of  public  policy  of  the 
forum by listing reference instruments. Even though the public policy of the Member States 

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will  inevitably  contain  common  elements,  there  are  variations  from  one  to  another. 
Consequently  the  Commission  cannot  accept  such  a  list.  The  proposed  new  paragraph  1b) 
addresses  the  issue  of  damages  in  amounts  regarded  as  excessive,  such  as  certain  types  of 
exemplary or punitive damages, already covered by a specific rule in Article 24 of the initial 
Commission  proposal.  Subject  to  drafting  changes  to  make  clear  that  punitive  damages  are 
not  ipso  facto  excessive,  the  Commission  can  accept  this  rule  being  incorporated  in  the 
Article  concerning  the  public  policy  of  the  forum.  Under  the  proposed  new  paragraph  1c), 
only the parties would be able to rely on the exception clause. But it is for the court to ensure 
compliance with the fundamental values of the forum, and that task cannot be delegated to the 
parties,  especially  as  they  are  not  always  legally  represented.  The  Brussels  I  Regulation 
provides for the possibility for the court to withhold the exequatur from a judgment given in 
another  Member  State  if  it  would  be  contrary  to  the  public  policy  of  the  forum.  The 
Commission accordingly cannot accept the proposed paragraph 1c). 

Amendment 54 provides for an obligation for the Commission to report on the application of 
the Regulation after it is in force. While the Commission acknowledges the value of such a 
report, it cannot accept all the conditions provided for by the amendment. For one thing, the 
period of three years after adoption of the Regulation would not allow an adequate number of 
judgments to be given as the basis for an effective evaluation. As in the Brussels I Regulation, 
the Commission proposes a period of five years after the Regulation enters into force. As for 
the content of the report, the question of the amount of damages awarded by the courts and 
the  elaboration  of  a  code  of  ethics  for  the  European  media  are  way  out  of  place  in  a 
conflict-of-laws  regulation.  The  Commission  accordingly  cannot  accept  that  these  questions 
should be dealt with in a report on the application of this Regulation. On the other hand the 
Commission agrees with Parliament on the need to consider how to achieve a more uniform 
approach to applying foreign law in the courts of the Member States. It does not believe that 
the time is ripe for a legislative initiative in this respect (see amendment 43), but it can accept 
the idea of looking into the question in depth in the application report. 

3.4 

Amendments rejected 

Amendments  4,  9,  10,  15  and  16  are  not  acceptable  to  the  Commission  as  it  rejects 
amendments 26, 30, 54 (paragraph 3), 31 and 42 to which they correspond. 

Amendments  6,  7,  8,  11  and  13  would  adapt  the  recitals  to  reflect  the  removal  of  several 
special rules for specific forms of liability as proposed in amendments 27, 29 and 33. Since 
the Commission cannot accept the deletion of these special rules (see above), it must logically 
reject  the  corresponding  changes  to  the  recitals.  In  its  report,  however,  Parliament  does  not 
exclude the possibility of keeping the special rules, as long as their scope is clearly defined, 
particular as regards unfair trading practices and damage to the environment. Recitals 12, 13 
and 14 of the amended proposal now accordingly refer to the relevant Community secondary 
legislation. The legal terminology of these Articles has also been changed to align it on that 
used  in  the  secondary  legislation.  But  while  the  concepts  are  thus  better  defined  in 
Community law, it must still be borne in mind that they may be defined in broader terms than 
in Community law when they are used for the determination of a tort/delict for the purposes 
of private international law. 

Amendment 27 would abolish the special rule for product liability. As in the case of the other 
torts/delicts such as unfair competition and environmental damage, the Commission considers 
that the general rule would not make it possible to foresee the applicable law with reasonable 
certainty. The place where the damage arises may be the result of pure chance in view of the 

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great  mobility  of  consumer  goods  (imagine  a  Dutch-made  hairdryer,  owned  by  a  German 
tourist  travelling  in  Thailand).  Since  in  this  area  there  are  very  often  amicable  settlements 
between  insurers,  it  is  particularly  important  to  come  up  with  a  clear,  foreseeable  rule  to 
facilitate such agreements. The Commission accordingly cannot accept the proposed deletion. 

Amendment  29  would  abolish  the  special  rule  for  anti-competitive  practices.  The 
Commission cannot accept  this amendment: Article 5 of the initial proposal did  not seek to 
introduce a rule differing from the general rule on the substance but simply to determine more 
accurately the place where the damage arises, which is not always an easy matter. Article 7 
has  been  slightly  reworded  in  the  amended  proposal  to  make  clear  that  the  aim  is  solely  to 
determine  more  accurately  where  the  damage  arises.  To  meet  the  European  Parliament’s 
requests regarding definitions, the Commission has also opted to use terminology in Article 7 
of the amended proposal that is directly inspired by Directive 2005/29 of 11 May 2005. The 
result, a contrario, is that non-contractual obligations arising from anti-competitive practices 
outlawed under Articles 81 and 82 of the Treaty or equivalent rules in the Member States are 
not covered by Article 7; they are consequently subject to the general rule in Article 5. But in 
its  Green  Paper  “Damages  actions  for  breach  of  the  EC  antitrust  rules”,  scheduled  for 
publication in December 2005, the Commission is planning to provoke debate on the question 
of  the  law  applicable  to  civil  actions  for  compensation  for  damage  arising  from  an  anti 
competitive  practice.  Depending  on  the  replies,  the  Commission  may  wish  to  support  a 
different solution in the course of the codecision procedure. 

Amendment 57 would change the substance of the rule applicable to violations of privacy, 
particularly  by  the  press.  The  Commission  cannot  accept  this  amendment,  which  is  too 
generous to press editors rather than the victim of alleged defamation in the press and does 
not reflect the solution taken by a large majority of Member States. Since it is not possible to 
reconcile  the  Council’s  text  and  the  text  adopted  by  Parliament  at  first  reading,  the 
Commission  considers  that  the  best  solution  to  this  controversial  question  is  to  exclude  all 
press  offences  and  the  like  from  the  proposal  and  delete  Article  6  of  the  original  proposal. 
Other privacy violations would be covered by Article 5. 

Amendment  31  would  bring  in  a  new  special  rule  concerning  damage  arising  from  the 
exercise  of  the  right  to  strike  by  employed  people.  The  Commission  is  sensitive  to  the 
underlying political arguments but it cannot accept this amendment as the proposed rule is too 
rigid.  

Amendment 32 restates that, until such time as the Community adopts detailed legislation on 
the  law  applicable  to  traffic  accidents,  Member  States  will  either  apply  the  1971  Hague 
Convention or the general rules of the Rome II Convention. Since it is quite possible that the 
implementation report provided for by Article 26 of the amended proposal will confirm that 
the  general  rules  of  the  Regulation  provide  a  satisfactory  solution,  the  Commission  cannot 
commit  itself  now  to  a  future  legislative  proposal  and  accordingly  rejects  this  amendment. 
Paragraph 2 of this amendment reiterates the proposal made in amendment 26 as regards the 
introduction  of  a  new  special  rule  on  the  evaluation  of  the  damage  arising  from  a  traffic 
accident, which the Commission cannot accept (see above under amendment 26).  

Amendment  33  would  delete  the  special  rule  for  damage  to  the  environment.  The 
Commission cannot accept this amendment as the proposed rule reflects the “polluter pays” 
principle  promoted  by  the  Community  and  already  applied  in  several  Member  States.  The 
Greens, incidentally, abstained from voting on this amendment in plenary. 

Amendment  41  again  raises  the  question  of  the  evaluation  of  the  damages,  which  would 
generally (except as regards traffic accidents) be governed by the lex fori. The Commission 

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cannot accept this amendment. This is a vital question for victims not only of traffic accidents 
but  of  any  other  situations,  in  particular  personal  injury,  and  the  rules  laid  down  by  the 
Regulation offer a fair solution reflecting, the legitimate expectations both of the victim and 
of the person causing the damage. 

Amendments 42 and 43 address the question of the application of foreign law by the court. 
The former would require the parties to indicate the law applicable in their statement of claim. 
The  Commission  is  in  favour  of  making  things  easier  for  courts  dealing  with  international 
litigation,  but  this  rule  would  be  too  difficult  to  implement  as  parties  are  not  all  capable  of 
stating  what  law  is  applicable  to  their  situation,  in  particular  when  they  are  not  legally 
represented.  The  purpose  of  the  latter  is  to  formalise  the  rule  already  in  operation  in  some 
Member States that the court must itself determine the content of the foreign law, though it 
can seek help from the parties. The Commission is of the opinion that, as matters stand, most 
Member States would not be able to apply the rule as they do not have proper structures in 
place to enable the courts to apply the foreign law in this way, and it rejects this amendment. 
But it agrees that this is an avenue well worth exploring and that special attention should be 
paid to it in the implementation report. 

Amendment 47 is redundant with amendment 22, which the Commission prefers on drafting 
grounds. Amendment 47 is accordingly rejected.  

4. 

CONCLUSION 

Acting  under  Article  250(2)  of  the  EC  Treaty,  the  Commission  amends  its  proposal  as 
follows. 

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2003/0168 (COD) 

Amended proposal for a  

EUROPEAN PARLIAMENT AND COUNCIL REGULATION 

ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS 
(“ROME II”) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
61(c) thereof, 

Having regard to the proposal from the Commission,4 

Having regard to the opinion of the European Economic and Social Committee,5 

Acting in accordance with the procedure laid down in Article 251 of the Treaty,6 

Whereas: 

(1) 

(2) 

(3) 

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5 
6 
7 

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9 

The Union has set itself the objective of establishing an area of freedom, security and 
justice.  To  that  end  the  Community  must  adopt  measures  relating  to  judicial 
cooperation in civil matters with a cross-border impact to the extent necessary for the 
proper  functioning  of  the  internal  market,  including  measures  promoting  the 
compatibility of the rules applicable in the Member States concerning the conflict of 
laws and of jurisdiction. 

For  the  purposes  of  effectively  implementing  the  relevant  provisions  of  the 
Amsterdam  Treaty,  the  Council  (Justice  and  Home  Affairs)  on  3  December  1998 
adopted  a  plan  of  action  specifying  that  the  preparation  of  a  legal  instrument  on  the 
law applicable to non-contractual obligations is among the measures to be taken within 
two years following the entry into force of the Amsterdam Treaty.7 

The Tampere European Council on 15 and 16 October 19998 approved the principle of 
mutual  recognition  of  judgments  as  a  priority  matter  in  the  establishment  of  a 
European  law-enforcement  area.  The  mutual  recognition  programme9  states  that 
measures relating to harmonisation of conflict-of-law rules are measures that actually 
do help facilitate the implementation of the principle. 

OJ C [... ], [... ] , p. [... ]p. Not yet published in the OJ. 
OJ C 241, 28.9.2004, p.1. 
Opinion of the European Parliament of […] (JO C […] du […], […] 6 July 2005. 
Action plan of the Council and the Commission on how best to implement the provisions of the Treaty 
of Amsterdam on an area of freedom, security and justice: OJ C 19, 23.1.1999, p. 1. 
Presidency conclusions of 16 October 1999, points 28 to 39. 
OJ C 12, 15.1.2001, p. 1. 

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(4) 

(5) 

(6) 

(7) 

(7) 

(8) 

(9) 

The proper functioning of the internal market creates a need, in order to improve the 
foreseeability  of  the  outcome  of  litigation,  certainty  as  to  the  law  and  the  free 
movement  of  judgments,  for  the  rules  of  conflict  of  laws  in  the  Member  States  to 
designate  the  same  national  law  irrespective  of  the  country  of  the  court  in  which  an 
action is brought.  

The scope and provisions of the this Regulation, which are subject to autonomous 
interpretation by the Court of Justice, must be determined in such a way as to be 
consistent with Regulation (EC) No 44/200110 of 22 December 2000 on jurisdiction 
and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters  (Brussels  I),11  the  Rome  Convention  of  198012
13.  and  the  Community 
instrument which will replace it. This Regulation will accordingly apply not only 
to actions for compensation for damage that has already arisen but also to actions 
to  prevent  likely  future  damage.  It  also  covers  obligations  based  on  rules 
imposing strict liability. 

Only uniform rules applied irrespective of the law they designate can avert the risk of 
distortions of competition between Community litigants. 

The principle of the lex loci delicti commissi is the basic solution for non-contractual 
obligations  in  virtually  all  the  Member  States,  but  the  practical  application  of  the 
principle where the component factors of the case are spread over several countries is 
handled differently. This situation engenders uncertainty in the law. 

The concern for consistency in Community law requires that this Regulation be 
without prejudice to provisions relating to or having an effect on the applicable 
law, contained in the treaties or instruments of secondary legislation other than 
this Regulation, such  as  conflict  rules in specific matters, overriding mandatory 
rules of Community origin, and the basic legal principles of the internal market. 
As a result, this Regulation should promote the proper functioning of the internal 
market, in particular the free movement of goods and services. 

To  respect  the  intentions  of  the  parties,  they  must  be  able  to  make  an  express 
choice  as  to  the  law  applicable  to  a  non-contractual  obligation.  However,  their 
choice  should  be  subject  to  certain  conditions,  and  consumers  and  employees 
should  have  no  possibility  of  choosing  the  applicable  law  before  the  event  from 
which the damage occurs. 

The  principle  of  the  lex  loci  delicti  commissi  is  the  basic  solution  for 
non-contractual obligations in virtually all the Member States, but the practical 
application  of  the  principle  where  the  component  factors  of  the  case  are  spread 
over several countries is handled differently. This situation engenders uncertainty 
in the law. 

10 
11 
12 

13 

OJ L 12, 16.1.2001, p. 1. 
OJ L 12, 16.1.2001, p.1 
The consolidated text of the Convention as amended by the various Conventions of Accession, and the 
declarations and protocols annexed to it, is published in OJ C 27, 26.1.1998, p. 34. 
The  consolidated  text  of  the  Convention,  as  amended  by  the  various  Conventions  of  Accession, 
and the declarations and protocols annexed to it, is published in OJ C 27, 26.1.1998, p. 34. 

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(8 10)  The  uniform  rule  must  serve  to  improve  the  foreseeability  of  court  decisions  and 
ensure  a  reasonable  balance  between  the  interests  of  the  person  claimed  to  be  liable 
and the person who has sustained damage. A connection with the country where the 
direct  damage  occurred  (lex  loci  delicti  commissi)  strikes  a  fair  balance  between  the 
interests of the person causing the damage and the person sustaining the damage, and 
also reflects the modern approach to civil liability and the development of systems of 
strict liability. 

(9 11)  Specific rules should be laid down for special torts/delicts where the general rule does 

not allow a reasonable balance to be struck between the interests at stake. 

(10 12) Regarding product liability, as penalised under Directive 374/1985/EEC of 25 July 
1985 on the approximation of the laws, regulations and administrative provisions 
of the Member States concerning liability for defective products,14 the conflict rule 
must  meet  the  objectives  of  fairly  spreading  the  risks  inherent  in  a  modern 
innovation, 
high-technology  society,  protecting  consumers'  health,  stimulating 
securing  undistorted  competition  and  facilitating  trade.  Connection  to  the  law  of  the 
place where the person sustaining the damage has his habitual residence, together with 
a foreseeability clause, is a balanced solution in regard to these objectives. 

(11 13) In matters of unfair competition commercial practices, as penalised under Directive 
29/2005/EC of 11 May 2005 concerning unfair business-to-consumer commercial 
practices in the internal market,15 the general conflict rule must makes it possible 
to  protect  competitors,  consumers  and  the  general  public  and  ensure  that  the  market 
economy  functions  properly.  The  connection  to  the  law  of  the  relevant  market 
generally satisfies these objectives, though in specific circumstances other rules might 
be appropriate The provision in a specific Article that the place where the damage 
occurs is the place where the market is affected helps to increase certainty as to 
the law. 

(12) 

In view of the Charter of Fundamental Rights of the European Union and the Council 
of  Europe  Convention  for  the  Protection  of  Human  Rights  and  Fundamental 
Freedoms,  the  conflict  must  strike  a  reasonable  balance  as  regards  violations  of 
privacy and rights in the personality. Respect for the fundamental principles that apply 
in  the  Member  States  as  regards  freedom  of  the  press  must  be  secured  by  a  specific 
safeguard clause. 

(1314) Regarding violations of the environment,environmental damage to which Directive 
35/2004/EC  of  21  April  2004  on  environmental  liability  with  regard  to  the 
prevention  and  remedying  of  environmental  damage16  applies,  the  solution  of 
allowing  the  person  sustaining  the  loss  to  choose  the  applicable  law  is  fully 
compliant with Article 174 of the Treaty, which provides that there must a high level 
of  protection  based  on  the  precautionary  principle  and  the  principle  that  preventive 
action must  be taken, the principle of priority for corrective  action at source and the 
principle that the polluter pays fully justifies the use of the principle of discriminating 
in favour of the person sustaining the damage. 

14 

15 
16 

OJ L 210,  7.8.1985,  p.  29,  as  amended  by  Directive  34/1999/EC  of  10  May  1999,  JO  L  141, 
4.6.1999, p. 20.  
OJ L 149, 11.6.2005, p. 22. 
OJ L 143, 30.4.2004, p. 56. 

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(1415) Regarding  violations  of  intellectual  property  rights,  the  universally  acknowledged 
principle  of  the  lex  loci  protectionis  should  be  preserved.  For  the  purposes  of  this 
Regulation,  the  term  intellectual  property  rights  means  copyright,  related  rights,  sui 
generis right for the protection of databases and industrial property rights. 

(1516) Similar  Special  rules  should  be  laid  down  for  non-contractual  obligations  arising 
from provided for where damage is caused by an act other than a tort or delict, such as 
unjust enrichment and agency without authority.  

(16)  To preserve their freedom of will, the parties should be allowed to determine the law 
applicable  to  a  non-contractual  obligation.  Protection  should  be  given  to  weaker 
parties by imposing certain conditions on the choice.  

(17)  Considerations  of  the  public  interest  warrant  giving  the  courts  of  the  Member  States 
the possibility,  in  exceptional  circumstances, of applying exceptions  based on public 
policy and overriding mandatory rules 

(18)  The  concern  to  strike  a  reasonable  balance  between  the  parties  means  that  account 
must be taken of the rules of safety and conduct in operation in the country in which 
the harmful act was committed, even where the non-contractual obligation is governed 
by another law, in so far as is appropriate. 

(19)  The  concern  for  consistency  in  Community  law  requires  that  this  Regulation  be 
without prejudice to provisions relating to or having an effect on the applicable law, 
contained  in  the  treaties  or  instruments  of  secondary  legislation  other  than  this 
Regulation, such as the conflict rules in specific matters, overriding mandatory rules of 
Community origin, the Community public policy exception and the specific principles 
of the internal market. Furthermore, this regulation is not intended to create, nor shall 
its  application  lead  to  obstacles  to  the  proper  functioning  of  the  internal  market,  in 
particular free movement of goods and services.  

(2019) Respect for international commitments entered into by the Member States means that 
this Regulation should not affect conventions relating to specific matters to which the 
Member  States  are  parties.  To  make  the  rules  easier  to  read,  the  Commission  will 
publish  the  list  of  the  relevant  conventions  in  the  Official  Journal  of  the  European 
Union on the basis of information supplied by the Member States. 

(2120) Since  the  objective  of  the  proposed  action,  namely  better  foreseeability  of  court 
judgments requiring genuinely uniform rules determined by a mandatory and directly 
applicable Community legal instrument, cannot be adequately attained by the Member 
States, who cannot lay down uniform Community rules, and can therefore, by reason 
of its effects throughout the Community, be better achieved at Community level, the 
Community can take measures, in accordance with the subsidiarity principle set out in 
Article 5 of the Treaty. In accordance with the proportionality principle set out in that 
Article,  a  regulation,  which  increases  certainty  in  the  law  without  requiring 
harmonisation  of  the  substantive  rules  of  domestic  law,  does  not  go  beyond  what  is 
necessary to attain that objective. 

(2221) [In accordance with Article 3 of the Protocol on the position of the United Kingdom 
and Ireland, annexed to the Treaty on European Union and the Treaty establishing the 
European Community, these Member States have stated their intention of participating 

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in the adoption and application of this Regulation./ In accordance with Articles 1 and 2 
of  the  Protocol  on  the  position  of  the  United  Kingdom  and  Ireland,  annexed  to  the 
Treaty  on  European  Union  and  the  Treaty  establishing  the  European  Community, 
these  Member  States  are  not  participating  in  the  adoption  of  this  Regulation,  which 
will accordingly not be binding on those Member States.] 

(2322) In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  establishing  the  European 
Community, that Member State is not participating in the adoption of this Regulation, 
which will accordingly not be binding on that Member State, 

HAVE ADOPTED THIS REGULATION:  

Chapter I - Scope 

Article 1 - Material scope 

This  Regulation  shall  apply,  in  situations  involving  a  conflict  of  laws,  to 

1. 
non-contractual obligations in civil and commercial matters.  

It shall not apply to revenue, customs or administrative matters. 

2. 

a) 

b) 

c) 

d) 

e) 

f) 

The following are excluded from the scope of this Regulation:  

non-contractual  obligations  arising  out  of  family  relationships  and  relationships 
deemed  to  be  equivalent,  including  having  comparable  effects  under  the  law 
applicable to such relationships, including maintenance obligations; 

non-contractual  obligations  arising  out  of  matrimonial  property  regimes  and 
successions  or  regimes  having  comparable  effects  under  the  law  applicable  to 
such relationships; 

non-contractual  obligations  arising  under  bills  of  exchange,  cheques  and 
promissory notes and other negotiable instruments to the extent that the obligations 
under such other instruments arise out of their negotiable character; 

the  personal  legal  liability  of  officers  and  members  as  such  for  the  debts  of  a 
company  or  firm  or  other  body  corporate  or  incorporate,  and  the  personal  legal 
liability  of  persons  responsible  for  carrying  out  the  statutory  audits  of  accounting 
documents  non-contractual  obligations,  in  particular  the  liability  of  partners, 
management  bodies  and  persons  responsible  for  carrying  out  the  statutory 
audits  of  accounting  documents  of  an  association,  a  company  or  firm  or  other 
body  corporate  or  incorporate,  provided  they  are  subject  to  specific  rules  of 
company law or other specific provisions applicable to such persons or bodies; 

non-contractual obligations among arising from relationships between the settlers, 
trustees and beneficiaries of a trust created voluntarily and evidenced in writing; 

non-contractual obligations arising out of nuclear damage; 

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g) 

h) 

i) 

non-contractual  obligations  arising  in  connection  with  the  liability  of  the  State 
for acts done in the exercise of public authority (“acta iure imperii”); 

violations of privacy and of personal rights by the media; 

evidence and procedure, without prejudice to Article 19. 

For the purposes of this Regulation, “Member State” means any Member State other 

3. 
than [the United Kingdom, Ireland or] Denmark. 

Article 2 – Universal application Application of the law of a third country 

Any law specified by this Regulation shall be applied whether or not it is the law of a Member 
State. 

Article 3 – Relationship with other provisions of Community law 

This  Regulation  shall  not  prejudice  the  application  or  adoption  of  acts  of  the 

1. 
institutions of the European Communities which: 

in  relation  to  particular  matters,  lay  down  choice-of-law  rules  relating  to 

a) 
non-contractual obligations; or  

lay  down  rules  which  apply  irrespective  of  the  national  law  governing  the 

b) 
relevant non-contractual obligation by virtue of this Regulation; or 

preclude the application of one or more provisions of the law of the forum or the 

c) 
law designated by this Regulation; 

lay  down  rules  to  promote  the  smooth  operation  of  the  internal  market,  where 
d) 
such rules cannot apply at the same time as the law designated by the rules of private 
international law. 

Chapter II - Uniform rules 

SECTION 1 
RULES APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF A 
TORT OR DELICT FREEDOM OF CHOICE 

Article 3 – General rule Article 4 – Freedom of choice 

The parties may agree, by an agreement entered into after their dispute arose, to 
1. 
submit  non-contractual  obligations  to  the  law  of  their  choice.  The  choice  must  be 
expressed or demonstrated with reasonable certainty by the circumstances of the case. It 
may not affect the rights and obligations of third parties. 

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2. 
Where  all  the  parties  exercise  a  commercial  activity,  such  choice  may  also  be 
made by an agreement freely negotiated before the event from which the damage arises 
occurs.  

If all the other elements of the situation at the time when the loss is sustained are 
3. 
located in a country other than the country whose law has been chosen, the choice of the 
parties shall be without prejudice to the application of rules of the law of that country 
which cannot be derogated from by contract (“mandatory provisions”). 

4. 
The  parties'  choice  of  the  applicable  law  shall  not  debar  the  application  of 
provisions of Community law where the other elements of the situation were located in 
one  of  the  Member  States  of  the  European  Community  at  the  time  when  the  loss  was 
sustained.  

SECTION 2 
GENERAL RULE APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING 
OUT OF A TORT OR DELICT 

Article 5 – General rule 

1. 
Where  no  choice  has  been  made  under  Article  4,  the  law  applicable  to  a 
non-contractual  obligation  shall  be  the  law  of  the  country  in  which  the  damage  arises  or  is 
likely  to  arise,  irrespective  of  the  country  in  which  the  event  giving  rise  to  the  damage 
occurred  and  irrespective  of  the  country  or  countries  in  which  the  indirect  consequences  of 
that event arise. 

2. 
However,  where  the  person  claimed  to  be  liable  and  the  person  sustaining  damage 
both  have  their  habitual  residence  in  the  same  country  when  the  damage  occurs,  the 
non-contractual obligation shall be governed by the law of that country. 

3. 
Notwithstanding paragraphs 1 and 2, where it is clear from all the circumstances of the 
case  that  the  non-contractual  obligation  is  manifestly  more  closely  connected  with  another 
country, the law of that other country shall apply. A manifestly closer connection with another 
country may be based in particular on a pre-existing relationship between the parties, such as 
a contract that is closely connected with the non-contractual obligation in question. For the 
purpose  of  assessing  the  existence  of  a  manifestly  closer  connection  with  another 
country, account shall be taken inter alia of the expectations of the parties regarding the 
applicable law.  

SECTION 3 
RULES APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING FROM 
SPECIFIC TORTS/DELICTS  

Article 4 6 - Product liability 

Without prejudice to Article 35(2) and (3), the law applicable to a non-contractual obligation 
arising out of damage or a risk of damage caused by a defective product shall be that of the 

EN 

14 

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country  in  which  the  person  sustaining  the  damage  is  habitually  resident  at  the  time  when 
the  damage  occurs,  unless  the  person  claimed  to  be  liable  can  show  that  the  product  was 
marketed in that country without his consent, in which case the applicable law shall be that of 
the country in which the person claimed to be liable is habitually resident. 

Article 5 – Unfair competition Article 7 – Unfair commercial practices  

The  law  applicable  to  a  non-contractual  obligation  arising  out  of  an  act  of  unfair 
1. 
competition unfair commercial practice shall be designated by Article 5(1). The country 
where  the  damage  occurs  or  threatens  to  occur  shall  be  the  country  where  competitive 
relations  or  the  collective  interests  of  consumers  are  or  are  likely  to  be  directly  and 
substantially affected.  

Where  an  act  of  unfair  competition  affects  exclusively  the  interests  of  a  specific 

2. 
competitor, Article 3 5(2) and (3) shall also apply. 

Article 6 - Violations of privacy and rights relating to the personality 

1. 
The law applicable to a non-contractual obligation arising out of a violation of privacy 
or rights relating to the personality shall be the law of the forum where the application of the 
law designated by Article 3 would be contrary to the fundamental principles of the forum as 
regards freedom of expression and information. 

The law applicable to the right of reply or equivalent measures shall be the law of the 

2. 
country in which the broadcaster or publisher has its habitual residence. 

Article 7 - Violation of the environment Article 8 – Environmental damage  

The  law  applicable  to  a  non-contractual  obligation  arising  out  of  a  violation  of  the 
environment  environmental  damage  or  damage  sustained  by  persons  or  property  as  a 
result of such damage shall be the law determined by the application of Article 35(1), unless 
the person sustaining damage prefers to base his claim on the law of the country in which the 
event giving rise to the damage occurred. 

Article 89 - Infringement of intellectual property rights 

The law applicable to a non-contractual obligation arising from an infringement of a 

1. 
an intellectual property right shall be the law of the country for which protection is sought. 

In the case of a non-contractual obligation arising from an infringement of a unitary 
2. 
Community industrial property right, the relevant Community instrument shall apply. For any 
question  that  is  not  governed  by  that  instrument,  the  applicable  law  shall  be  the  law  of  the 
Member State in which the act of infringement is committed. 

Notwithstanding  Sections  1,  2  and  4,  this  Article  shall  apply  to  all 
3. 
non-contractual  obligations  arising  from  an  infringement  of  an  intellectual  property 
right. 

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SECTION 2 
RULES APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF AN 
ACT OTHER THAN A TORT OR DELICT 

Article 9 – Determination of the applicable law 

SECTION 4 
SPECIAL RULES APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING 
OUT OF UNJUST ENRICHMENT AND NEGOTIORUM GESTIO 

Article 10– Unjust enrichment  

If a non-contractual obligation arising out of an act other than a tort or delict unjust 
1. 
enrichment,  including  payment  of  amounts  wrongly  received,  concerns  a  relationship 
previously  existing  between  the  parties,  such  as  a  contract  or  a  tort  or  delict  to  which 
section 2 or 3 applies, which is closely connected with the non-contractual obligation, it shall 
be governed by the law that governs that relationship. 

Without prejudice to Where the applicable law cannot be determined on the basis 
2. 
of  paragraph  1,  and  the  parties  have  their  habitual  residence  in  the  same  country  when  the 
event  giving  rise  to  the  damage  occurs  when  the  event  giving  rise  to  unjust  enrichment 
occurs, the law applicable to the non-contractual obligation shall be the law of that country. 

Without prejudice to Where the applicable law cannot be determined on the basis 
3. 
of paragraphs 1 and 2, a non-contractual obligation arising out of unjust enrichment shall be 
governed by the law of the country in which the enrichment takes place the event giving rise 
to unjust enrichment substantially occurs. 

4. 
Without  prejudice  to  paragraphs  1  and  2,  the  law  applicable  to  a  non-contractual 
obligation  arising  out  of  actions  performed  without  due  authority  in  connection  with  the 
affairs  of  another  person  shall  be  the  law  of  the  country  in  which  the  beneficiary  has  his 
habitual residence at the time of the unauthorised action. However, where a non-contractual 
obligation  arising  out  of  actions  performed  without  due  authority  in  connection  with  the 
affairs of another person relates to the physical protection of a person or of specific tangible 
property,  the  law  applicable  shall  be  the  law  of  the  country  in  which  the  beneficiary  or 
property was situated at the time of the unauthorised action.  

5. 
Notwithstanding paragraphs 1, 2, 3 and 4, where it is clear from all the circumstances 
of  the  case  that  the  non-contractual  obligation  is  manifestly  more  closely  connected  with 
another country, the law of that other country shall apply. 

Nowithstanding  the  present  Article,  all  non-contractual  obligations  in  the  field  of 

6. 
intellectual property shall be governed by Article 8. 

4. 
Where it is clear from all the circumstances of the case that the non-contractual 
obligation arising out of unjust enrichment is manifestly more closely connected with a 
country  other  than  the  one  indicated  by  paragraphs  1,  2  or  3,  the  law  of  that  other 
country shall apply. 

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Article 11– Negotiorum gestio 

1. 
If  a  non-contractual  obligation  arising  out  of  an  action  or  actions  performed 
without  due  authority  in  connection  with  the  affairs  of  another  person  concerns  a 
relationship previously existing between the parties, such as a contract or a tort or delict 
to  which  section  2  or  3  applies,  which  is  closely  connected  with  that  non-contractual 
obligation, it shall be governed by the law that governs that relationship. 

2. 
Where the applicable law cannot be determined on the basis of paragraph 1 and 
the parties have their habitual residence in the same country when the event giving rise 
to the loss or damage occurs, the applicable law shall be the law of that country. 

Where the applicable law cannot be determined on the basis of paragraphs 1 and 

3. 
2, the applicable law shall be the law of the country in which the action took place. 

4. 
Where it is clear from all the circumstances of the case that the non-contractual 
obligation  is  manifestly  more  closely  connected  with  a  country  other  than  the  one 
indicated by paragraphs 1, 2 or 3, the law of that other country shall apply. 

SECTION 3 
COMMON RULES APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING 
OUT OF A TORT OR DELICT AND OUT OF AN ACT OTHER THAN A TORT OR DELICT 

Article 10 – Freedom of choice 

The  parties  may  agree,  by  an  agreement  entered  into  after  their  dispute  arose,  to 
1. 
submit non-contractual obligations other than the obligations to which Article 8 applies to the 
law of their choice. The choice must be expressed or demonstrated with reasonable certainty 
by the circumstances of the case. It may not affect the rights of third parties. 

2. 
If  all  the  other  elements  of  the  situation  at  the  time  when  the  loss  is  sustained  are 
located  in  a  country  other  than  the  country  whose  law  has  been  chosen,  the  choice  of  the 
parties shall be without prejudice to the application of rules of the law of that country which 
cannot be derogated from by contract. 

3. 
The parties' choice of the applicable law shall not debar the application of provisions 
of  Community  law  where  the  other  elements  of  the  situation  were  located  in  one  of  the 
Member States of the European Community at the time when the loss was sustained. 

SECTION 5 
COMMON RULES  

Article 1112 – Scope of the law applicable to non-contractual obligations 

The law applicable to non-contractual obligations under Articles 34 to 1011 of this Regulation 
shall govern in particular: 

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a) 

b) 

c) 

d) 

e) 

f) 

g) 

h) 

i) 

the conditions and extent of liability, including the determination of persons who are 
liable for acts performed by them; 

the grounds for exemption from liability, any limitation of liability and any division 
of liability; 

the existence and kinds of injury or damage for which compensation may be due; 

within the limits of its powers, the measures which a court has power to take under 
its procedural law to prevent or terminate injury or damage or to ensure the provision 
of compensation; 

the assessment of the damage in so far as prescribed by law; 

the question whether a right to compensation may be assigned or inherited; 

persons entitled to compensation for damage sustained personally;  

liability for the acts of another person; 

the  manners  in  which  an  obligation  may  be  extinguished  and  rules  of  prescription 
and  limitation,  including  rules  relating  to  the  commencement  of  a  period  of 
prescription or limitation and the interruption and suspension of the period. 

Article 1213 – Overriding mandatory rules 

Nothing in this Regulation shall restrict the application of the rules of the law of the 
21. 
forum in a situation where they are mandatory irrespective of the law otherwise applicable to 
the non-contractual obligation. 

1.2.  Where the law of a specific country is applicable by virtue of this Regulation, effect 
may  be  given  to  the  mandatory  rules  of  another  country  with  which  the  situation  is  closely 
connected, if and in so far as, under the law of the latter country, those rules must be applied 
whatever the law applicable to the non-contractual obligation. In considering whether to give 
effect  to  these  mandatory  rules,  regard  shall  be  had  to  their  nature  and  purpose  and  to  the 
consequences of their application or non-application. 

Article 1314 – Rules of safety and conduct 

Whatever  may  be  the  applicable  law,  in  determining  liability  account  shall  be  taken,  as  a 
matter  of  fact,  and  in  so  far  as  is  appropriate,  of  the  rules  of  safety  and  conduct  which 
were in force at the place and time of the event giving rise to the damage. 

Article 1415 – Direct action against the insurer of the person liable 

The right of Persons who have suffered damage to may take direct action against the insurer 
of the person claimed to be liable shall be governed by where such actions are provided for 
either  by  the  law  applicable  to  the  non-contractual  obligation  unless  the  person  who  has 

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suffered  damage  prefers  to  base  his  claims  on  or  by  the  law  applicable  to  the  insurance 
contract. 

Article 1516 – Statutory subrogation and multiple liability 

1. 
Where  a  person  (“the  creditor”)  has  a  non-contractual  claim  upon  another  (“the 
debtor”),  and  a  third  person  has  a  duty  to  satisfy  the  creditor,  or  has  in  fact  satisfied  the 
creditor in discharge of that duty, the law which governs the third person's duty to satisfy the 
creditor shall determine whether the third person is entitled to exercise against the debtor the 
rights which the creditor had against the debtor under the law governing their relationship in 
whole or in part. 

The same rule shall apply where several persons are subject to the same claim and one 

2. 
of them has satisfied the creditor. 

Where a third person, for example an insurer, has a duty to satisfy a creditor in respect 
of a non-contractual obligation, the right of that third person to take action against the 
person owing the non-contractual obligation shall be governed by the law applicable to 
the duty to satisfy the third person’s claim, for example under an insurance contract. 

Article 1617 - Multiple liability 

Where a person has a claim upon several debtors who are jointly liable and one of those 
debtors has already satisfied the creditor, the right of that debtor to take action against 
the other debtors shall be governed by the law applicable to that debtor's duty to satisfy 
the creditor.  

Article 18 – Formal validity 

A  unilateral  act  intended  to  have  legal  effect  and  relating  to  a  non-contractual  obligation  is 
formally  valid  if  it  satisfies  the  formal  requirements  of  the  law  which  governs  the 
non-contractual obligation in question or the law of the country in which this act is done. 

Article 1719 – Evidence 

The  law  governing  a  non-contractual  obligation  under  this  Regulation  applies  to  the 
1. 
extent  that,  in  matters  of  non-contractual  obligations,  it  contains  rules  which  raise 
presumptions of law or determine the burden of proof. 

Acts intended to have legal effect may be proved by any mode of proof recognised by 
2. 
the law of the forum or by any of the laws referred to in Article 1618 under which that act is 
formally valid, provided that such mode of proof can be administered by the forum. 

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Chapter III - Other provisions 

Article18 - Assimilation to the territory of a State 

For the purposes of this Regulation, the following shall be treated as being the territory of a 
State: 

a) 

b) 

c) 

installations  and  other  facilities  for  the  exploration  and  exploitation  of  natural 
resources in, on or below the part of the seabed situated outside the State' s territorial 
waters  if  the  State,  under  international  law,  enjoys  sovereign  rights  to  explore  and 
exploit natural resources there; 

a ship on the high seas which is registered in the State or bears lettres de mer or a 
comparable document issued by it or on its behalf, or which, not being registered or 
bearing lettres de mer or a comparable document, is owned by a national of the State; 

an aircraft in the airspace, which is registered in or on behalf of the State or entered 
in its register of nationality, or which, not being registered or entered in the register 
of nationality, is owned by a national of the State. 

Article 1920 – Assimilation to habitual residence 

1. 
For companies or firms and other bodies or incorporate or unincorporate, the principal 
place of business shall be considered to be the habitual residence. However, where the event 
giving  rise  to  the  damage  occurs  or  the  damage  arises  in  the  course  of  operation  of  a 
subsidiary, a branch or any other establishment, the place of business shall take the place of 
the habitual residence. 

Where the event giving rise to the damage occurs or the damage arises in the course of 
2. 
the  business  activity  of  a  natural  person,  that  natural  person’s  principal  place  of  business 
shall take the place of the habitual residence. 

3. 
For the purpose of Article 6(2), the place where the broadcaster is established within 
the meaning of the directive 89/552/EEC, as amended by the directive 97/36/EC, shall take 
the place of the habitual residence. 

Article 2021 – Exclusion of renvoi 

The application of the law of any country specified by this Regulation means the application 
of the rules of law in force in that country other than its rules of private international law. 

Article 2122 – States with more than one legal system 

1. 
Where  a  State  comprises  several  territorial  units,  each  of  which  has  its  own  rules  of 
law  in  respect  of  non-contractual  obligations,  each  territorial  unit  shall  be  considered  as  a 
country for the purposes of identifying the law applicable under this Regulation. 

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2. 
A State within which different territorial units have their own rules of law in respect of 
non-contractual  obligations  shall  not  be  bound  to  apply  this  Regulation  to  conflicts  solely 
between the laws of such units. 

Article 2223 – Public policy of the forum 

The  application  of  a  rule  of  the  law  of  any  country  specified  by  this  Regulation  may  be 
refused  only  if  such  application  is  manifestly  incompatible  with  the  public  policy  (“ordre 
public”) of the forum. In particular, the application under this Regulation of a law that 
would have the effect of causing non-compensatory damages to be awarded that would 
be excessive may be considered incompatible with the public policy of the forum. 

Article 2324 – Relationship with other provisions of Community law international 
conventions  

This  Regulation  shall  not  prejudice  the  application  of  provisions  contained  in  the 
1. 
Treaties establishing the European Communities or in acts of the institutions of the European 
Communities  which:  This  Regulation  shall  not  prejudice  the  application  of  multilateral 
international conventions to which the Member States are parties when this Regulation 
is  adopted  and  which,  in  relation  to  particular  matters,  lay  down  conflict-of-law  rules 
relating to non-contractual obligations and of which the Commission has been notified 
in accordance with Article 26. 

–  –in relation to particular matters, lay down choice-of-law rules relating to non-contractual 

obligations; or 

–  –lay down rules which apply irrespective of the national law governing the non-contractual 

obligation in question by virtue of this Regulation; or 

–  –prevent  application  of  a  provision  or  provisions  of  the  law  of  the  forum  or  of  the  law 

designated by this Regulation. 

2. 
This Regulation shall not prejudice the application of Community instruments which, 
in  relation  to  particular  matters  and  in  areas  coordinated  by  such  instruments,  subject  the 
supply  of  services  or  goods  to  the  laws  of  the  Member  State  where  the  service-provider  is 
established and, in the area coordinated, allow restrictions on freedom to provide services or 
goods originating in another Member State only in limited circumstances. 

Article 24 – Non-compensatory damages 

The application of a provision of the law designated by this Regulation which has the effect of 
causing non-compensatory damages, such as exemplary or punitive damages, to be awarded 
shall be contrary to Community public policy. 

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Article 25 – Relationship with existing international conventions 

This Regulation shall not prejudice the application of international conventions to which the 
Member States are parties when this Regulation is adopted and which, in relation to particular 
matters, lay down conflict-of-law rules relating to non-contractual obligations. 

2. 
However, where, at the time of conclusion of the contract, all the material aspects 
of  the  situation  are  located  in  one  or  more  Member  States,  this  Regulation  shall  take 
precedence over the following Conventions: 

the  Hague  Convention  of  4  May  1971  on  the  Law  Applicable  to  Traffic 

- 
Accidents; 

the  Hague  Convention  of  2  October  1973  on  the  Law  Applicable  to  Products 

- 
Liability. 

Chapter IV - Final provisions 

Article 2625 - List of conventions referred to in Article 2524 

The Member States shall notify the Commission, no later than 30 June 2004 ..., of the 
1. 
list of conventions referred to in Article 2524. After that date, the Member States shall notify 
the Commission of all denunciations of such conventions. 

The Commission shall publish the list of conventions referred to in paragraph 1 in the 

2. 
Official Journal of the European Union within six months of receiving the full that list. 

Article 2726 – Implementation report  

Not  later  than  five  years  after  this  Regulation  enters  into  force,  the  Commission  shall 
submit to the European Parliament, the Council and the European Economic and Social 
Committee a report on its application. If necessary, this report shall be accompanied by 
proposals to adapt the Regulation.  

In making its report, the Commission shall pay particular attention to the effects of the 
way in which foreign law is treated in the courts of the Member States. If necessary, the 
report  shall  include  recommendations  as  to  the  desirability  of  a  common  approach  to 
the application of foreign law. 

The  report  shall  consider  whether  Community  legislation  specifically  dealing  with  the 
law applicable to traffic accidents ought to be proposed. 

Article 27 - Entry into force and application in time 

This Regulation shall enter into force on 1 January 2005....  

It  shall  apply  to  non-contractual  obligations  arising  out  of  acts  occurring  after  its entry into 
force. 

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This Regulation shall be binding in its entirety and directly applicable in all Member States in 
accordance with the Treaty establishing the European Community. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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